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Victus

by Kevin D. Williamson

The rise and fall of Patton Boggs

There were a few plying the dark arts of lobbying in Washington before it, but Patton Boggs was in some ways the original modern lobbyist shop. A D.C. law firm with its roots in the old Washington aristocracy — and in Washington “aristocracy” is mostly a polite term for nepotism-ocracy — Patton Boggs had a winning pedigree. Thomas Hale Boggs Jr. was the son of a long-serving Louisiana Democratic congressman, a former House majority leader and a member of the Warren Commission who bequeathed his seat in Congress to his wife upon his death; Boggs mère held the seat for nearly 20 years before Bill Clinton eventually made her the ambassador to the Holy See. So, Mom and Dad were in the House, and his sister Cokie Roberts (that’s Mary Martha Corinne Morrison Claiborne Roberts, née Boggs) happily does the Democrats’ business in the media, while another sister served as mayor of Princeton. Mr. Boggs himself made a run at a House seat in 1970, just four years after leaving Lyndon Johnson’s White House to join James R. Patton Jr.’s law firm. The my-dad-was-in-Congress model worked splendidly in the early days, that golden age when, as Mr. Boggs would later put it, there were only “fifteen people who ran the government.” The most successful lobbyists formed what the Washington Post would describe as a “cult,” and Mr. Boggs was that unholy congregation’s pontifex maximus.

Like many high priests before him, Mr. Boggs was quick to see the value of a specialized language in which only initiates were fluent, in this case the increasingly technical language of federal law. Mr. Boggs played a small role in helping to launch the explosion in the size and scope of the federal government during his time in the Johnson administration, and then he surfed the wave he’d helped create to a position of immense wealth and power. He knew that the boutique lobbyist shop — generally run by a former federal-agency head or a member of a political family such as himself — was soon to be a thing of the past. What was needed, he calculated, was a lobbying operation integrated into a sophisticated and diversified law firm, so that the highly specialized lawyer sitting on the government side of the desk was facing a highly specialized lawyer with the same technical knowledge and subject-matter mastery. Lobbying was to be not about trading or simply suborning favors, but about having a hand in writing the law itself, whether in the form of legislation or of regulation.

And that model worked well for a long time. Patton Boggs occupied a sweet spot from the 1970s until the turn of the century, its combination of political connections and legal expertise perfectly suited to the model of government prevalent at the time: big enough and complicated enough to require highly specialized legal representation, but concentrated enough that Patton Boggs could be extraordinarily well connected across the legislative and executive branches both, with strong ties to leaders of each party both in and out of office. When Trent Lott and John Breaux started a bipartisan firm to exploit their own deep ties to the Senate, Patton Boggs simply bought them.

But there were problems. Patton Boggs had a great deal of diverse legal expertise, but it was very much Mr. Boggs’s firm. Clients worried, and competitors hoped, that its dominating position would erode as the aging Mr. Boggs handed over more responsibilities at the firm to the succeeding generation. On top of that, the firm’s infamous eat-what-you-kill compensation model, which allowed senior partners to cruise along for years taking an unusually large share of the profits from business that they had originated but had long since stopped actively working on, put the senior partners and the junior members of the firm at odds. In the Reagan years, when it still seemed possible that a man might go to work for a firm and remain there for his entire career, waiting to move up to the top of that food chain was simply part of how the world worked. But after the dot-com explosion a decade later, which saw people in their early twenties starting firms that would go on to be worth billions, waiting for old lawyers in seersucker suits to kick off became less attractive. Patton Boggs became a high-turnover firm, and as the partnership’s finances deteriorated, it wasn’t just low-level lawyers looking for better opportunities elsewhere. “When partners leave, sharks smell blood,” writes legal observer David Parnell. “That’s what sharks do. Only romantics and poets smell roses.”

By the first decade of the 21st century, history had caught up with Patton Boggs. There was pressure on revenue, and the sloppy internal financial management for which big, old-school law firms once were infamous took a toll. At one point, money was so tight that senior partners were asked to stop taking their “draw” — the salary-like deductions from the firm’s expected revenues through which the majority of the firm’s profits were paid out.

But Patton Boggs believed that it had a line on a Perry Mason moment, a chance for a dramatic turnaround in the form of a big piece of a multibillion-dollar action against one of the world’s largest, most profitable, and most prominent firms. It spelled out its strategy in a private internal memo bearing the title “Invictus,” in reference to the William Ernest Henley poem that, among other things, constituted the last words of Timothy McVeigh. And the Invictus strategy would do to Patton Boggs roughly what McVeigh did to the federal building in Oklahoma City.

When Patton Boggs agreed to act as the U.S. legal arm of the Ecuador-based conspiracy to shake down Chevron for billions of dollars based on perjured testimony, falsified evidence, and bribes to corrupt judges, the firm assured its employees that it was taking the moral high ground — Texaco, it said, had undeniably committed horrible environmental abuses in Ecuador, and Chevron had acquired responsibility for those crimes when it took over Texaco. In language that would come to be mercilessly ironic, the Invictus memo spoke of “facing an unscrupulous adversary with vast resources and a seemingly limitless appetite for litigation,” and it attempted to explain away evidence of corruption in the case, including a videotape of the judge talking about the disbursement of $3 million in bribes. Adding to the generally lame-thriller-novel aesthetic of the proceedings, the memo’s subheads read like Robert Ludlum titles, e.g., “The Alegato Finale.” It even contemplates using the work of the American Tort Reform Association, which is dedicated to opposing lawsuit abuses, as a guide to shopping for a plaintiff-friendly jurisdiction in which “judges — not only juries — tend to be plaintiff-friendly.”

The bottom-line promise was a piece of the $18.2 billion judgment against Chevron, or, short of that, at least of a smaller settlement still amounting to billions of dollars. In reality, Patton Boggs would end up offering Chevron an abject apology — along with a check for $15 million. And more.

The general theory of the Chevron shakedown seems to have been that the oil giant would, in the end, settle, especially if given the option of doing so at some fraction of that $18.2 billion. But Chevron was disinclined to do so. It is not clear whether Patton Boggs knew exactly how corrupt the action it became involved with was — Chevron executives, having signed a “non-disparagement” agreement with Patton Boggs as part of the settlement, aren’t saying — but the law firm would later confess that there were certain “factual findings about matters which would have materially affected our firm’s decision to become involved and stay involved as counsel.” Those findings, spelled out in district appellate judge Lewis Kaplan’s opinion in March, included collusion with and payments to judges and supposedly neutral experts, with reports and judicial rulings that were literally written by the plaintiffs’ agents rather than by the judges and experts whose names appeared on them. Patton Boggs, whose role was to seek to collect on the judgment, was a step removed from that, but it would be remarkable if a firm composed of some of the nation’s most sophisticated lawyers and political operators did not recognize a grand-scale shakedown when they saw it.

Similarly, it is not entirely clear how much of that corruption was known to such Democratic political operators as Andrew Cuomo’s ex-wife, Kerry Kennedy, who had a $40 million stake in the suit in the form of a percentage assigned her as part of her work as a PR consultant for the plaintiffs, and Karen Hinton, the former Cuomo and DNC aide who angled for a percentage of the Chevron judgment while she was blasting the firm at Politico and boasting that she was personally responsible for siccing the attorney general of New York on the company (“He is doing this for me. Because I asked,” she wrote in a 2009 e-mail). Whether these Democratic operatives and D.C. lawyers knew they were engaged in a wildly corrupt enterprise is something that will come out in future litigation and, possibly, criminal investigations. The very friends-and-family model that launched Patton Boggs all those years ago could entangle an entire cadre of Democratic activists and environmental opportunists.

Regardless of what Patton Boggs knew, what matters is that Chevron knew. It knew precisely how corrupt the action against it was. And so it was willing to spend a harrowing amount of money to fight it out. “Corporations that find themselves in a similar position in the future may use Chevron’s strategy as an example,” writes legal reporter B. Keith Gibson. “Although costly to pursue, the aggressive approach taken by Chevron has likely saved the company hundreds of millions, if not billions, of dollars. Additionally, the brand capital that was likely saved by shifting the focus of the case from alleged pollution of rainforests in Ecuador to a corrupt legal process cannot be overlooked.” 

Though far from taking Pollyanna’s view of the U.S. legal system, throughout the process Chevron remained confident that if it could get its evidence in front of an honest judge, it would prevail. Which is what happened: Judge Kaplan not only threw out the judgment against Chevron but opened the door to suing or even prosecuting the plaintiffs under organized-crime laws. That was a shocking outcome for the main legal mover behind the Ecuadorian plaintiffs, Steve Donziger, an old basketball buddy of Barack Obama’s. And it was a knockout punch to Patton Boggs. Patton Boggs was a law firm unusually dependent on its lobbying business, and it had not only read the legal realities in the case wrong — it had misread the politics.

With partners and associates already headed for the doors as the firm’s financial woes deepened — its top election-law specialists, including Mitt Romney’s campaign lawyer, decamped as one for a competitor — Patton Boggs suddenly had a problem that put the partnership at odds with its partners. Those senior partners looking to scurry like white-shoed rats off the sinking corporate vessel were intensely worried that their individual involvement in ongoing litigation would render them unemployable, or at least seriously damage their post-Patton prospects. When they finally surrendered, they surrendered hard: $15 million in I’m-sorry money, a statement of regret, assignment of all the firm’s interests in the case to Chevron, and, perhaps most important, an agreement to share certain documents with Chevron. By means of their $15 million gesture of goodwill, Patton Boggs and its partners ensure that they will not be invited to the what-did-they-know-and-when-did-they-know-it party that is awaiting the plaintiffs and their agents. Mr. Donziger has protested that the apology prejudices the case and that the sharing of documents violates attorney–client privilege, but Patton Boggs has stated that no privileged documents are to be shared, which brings up the very interesting and as yet unanswered question of what exactly is in those files.

Invictus, the unconquered, was anything but. Patton Boggs, a felled giant with its metaphorical tail tucked firmly between its legal legs, merged with a competitor, Squire Sanders, and some genius decided that the new firm would have the goofy quasi-medieval name “Squire Patton Boggs.” A few weeks after the election-law team departed, at least two dozen attorneys and policy experts, including one who specialized in representing government contractors, left the struggling firm en masse as the merger was being implemented.

Patton Boggs, as it was, is no more. But the men behind it, and the business model behind it, are still out there. And they probably always will be.

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